Brigham Young University Law SchoolBYU Law Digital Commons
Utah Supreme Court Briefs
1986
Shauna F. Hodges v. Gibson Products Company :Brief of AppellantUtah Supreme Court
Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_sc1
Part of the Law Commons
Original Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Thomas R. Karrenberg; Hansen & Anderson; Attorneys for Respondent.F. Robert Bayle, Andrea C. Alcabes; Bayle, Hanson, Nelson & Chapman; Attorneys for Appellants.
This Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah SupremeCourt Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available athttp://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] withquestions or feedback.
Recommended CitationBrief of Appellant, Hodges v. Gibson Products, No. 198620929.00 (Utah Supreme Court, 1986).https://digitalcommons.law.byu.edu/byu_sc1/1448
M«* IN THE SUPREME COURT OP THE STATE OP UTM
SHAUNA F. HODGES,
Plaintiff-Respondent,
vs.
GIBSON PRODUCTS COMPANY, d/b/a GIBSON'S DISCOUNT CENTER, a Utah corporation, and CHAD CROSGROVE, an individual,
Defendants-Appellants.
Case No. 2MMI9
aOs^M
BRIEF OF DEFENDANTS-APPELLANTS
APPEAL FROM THE THIRD JUDICIAL DISTRICT flDURT OF SALT LAKE COUNTY, STATE OF UTAH
THE HONORABLE JOHN A. ROKICH, DISTRICT JUDGE, PRESIDING
F. ROBERT BAYLE ANDREA C. ALCABES BAYLE, HANSON, NELSfi 1300 Continental Ban Salt Lake City, Utai Attorneys for Deferil
IS CHIPMAN fBuilding [4101 its-Appellants
THOMAS R. KARRENBERG HANSEN & ANDERSON 50 West Broadway, Sixth Floor Salt Lake City, Utah 84101 Attorneys for Plaintiff-Respondent
IN THE SUPREME COURT OP THE STATE OF UTAH
SHAUNA F. HODGES,
Plaintiff-Respondent,
vs.
GIBSON PRODUCTS COMPANY, d/b/a GIBSON'S DISCOUNT CENTER, a Utah corporation, and CHAD CROSGROVE, an individual,
Defendants-Appellants.
Case No. 20929
BRIEF OF DEFENDANTS-APPELLANTS
APPEAL FROM THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY, STATE OF UTAH
THE HONORABLE JOHN A. ROKICH, DISTRICT JUDGE, PRESIDING
F. ROBERT BAYLE ANDREA C. ALCABES BAYLE, HANSON, NELSON & CHIPMAN 1300 Continental Bank Building Salt Lake City, Utah 84101 Attorneys for Defendants-Appellants
THOMAS R. KARRENBERG HANSEN & ANDERSON 50 West Broadway, Sixth Floor Salt Lake City, Utah 84101 Attorneys for Plaintiff-Respondent
TABLE OF CONTENTS
Page
STATEMENT OF ISSUES PRESENTED FOR REVIEW
STATEMENT OF THE CASE
Nature of the Case Course of the Proceedings Disposition Statement of the Facts Summary of Argument
ARGUMENT
1 1 1 2 7
POINT I: THE ISSUE OF WRONGFUL DISCHARGE WAS IMPROPERLY SUBMITTED TO THE JURY
A. WRONGFUL DISCHARGE IS NOT A CAUSE OF ACTION IN UTAH
9
9
B. THE JURY'S FINDING ON THIS ISSUE IS UNSUPPORTED BY THE EVIDENCE 12
POINT II: THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JURY'S VERDICT REGARDING MALICIOUS PROSECUTION
A. PLAINTIFF-RESPONDENT FAILED TO PROVE THAT DEFENDANTS DID NOT HAVE PROBABLE CAUSE AND ACTED WITH MALICE, AND THAT THE CRIMINAL PROCEEDING WAS TERMINATED IN HER FAVOR
12
12
B. THE COURT GAVE INSTRUCTIONS TO THE JURY WHICH WERE ERRONEOUS BECAUSE THEY ARE CONTRARY TO THE EVIDENCE ADDUCED AT TRIAL AND TO UTAH LAW 17
POINT III:
POINT IV:
THE ISSUE OF PUNITIVE DAMAGES WAS ERRONEOUSLY SUBMITTED TO THE JURY
THE JURY INSTRUCTION REGARDING SPECIAL AND GENERAL DAMAGES WAS ERRONEOUS IN THAT IT DID NOT CONFORM TO THE PLEADINGS
19
22
i
SHAUNA HODGES DID NOT SPECIFICALLY PLEAD SPECIAL DAMAGES OR GENERAL DAMAGES IN THE AMOUNT OF $200,000 AND SHOULD THEREFORE BE PRECLUDED FROM RECOVERY 22
CONCLUSION
ADDENDUM
B. THE EVIDENCE PRESENTED BY SHAUNA HODGES WITH REGARD TO HER SPECIAL DAMAGES DID NOT SUPPORT HER CLAIM OR THE JURY'S AWARD 24
26
27
ii
TABLE OF AUTHORITIES
Cases Cited
Amos v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 594 F. Supp. 791 (D. Utah 1984)
Barney v. Jewel Tea Co., 104 Utah 292, 239 P.2d 878 (1943)
Bearup v. Bearup, 122 Ariz. 509, 596 P.2d 35 (Ariz. App. 1979)
Behrens v. Raleigh Hills Hospital, 675 P.2d 1179 (Utah 19 83)
Bihlmaier v. Carson, 603 P.2d 790 (Utah 1979)
Bird v. Rothman, 128 Ariz. 599, 627 P.2d 1097 (Ariz. App. 1981)
Cottrell v. Grand Union Tea Co., 5 Utah 2d 187, 299 P.2d 622 (1956)
Crane Co. v. Dahle, 576 P.2d 870 (Utah 1978)
Criscione v. Sears, Roebuck & Co., 66 111. App. 3d 664, 23 111. Dec. 455, 384 NE 2d 91 (1978)
Daniel v. Magma Copper Co., 127 Ariz. 320, 620 P.2d 699 (Ariz. App. 1980)
Graham v. Street, 2 Utah 2d 144, 270 P.2d 456 (1954)
Held v. American Linen Supply, 6 Utah 2d 106, 307 P.2d 210 (1957)
Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala. 1977)
Jones v. Keogh, 137 Vt. 562, 409 A.2d 581 (1979)
Lampos v. Bazar Inc., 527 P.2d 376 (Ore. 1974)
Orser v. State, 582 P.2d 1227 (Mont. 1978)
Patterson v. City of Phoenix, 103 Ariz. 64, 436 P.2d 613 (1968)
iii
Perkins v. Stephens, 28 Utah 2d 436, 503 P.2d 1212 (1972)
Potter v, Utah Driv-Ur-Self System, Inc., 11 Utah 2d 133, 355 P.2d 714 (1960)
Stone v. Hurst Lumber Co., 15 Utah 2d 49, 386 P.2d 910 (1963)
Synergetics v. Marathon Ranching Co., Ltd., 701 P.2d 1106 (Utah 1985)
Tulsa Radiology Assoc, Inc. v. Hickman, 683 P.2d 537 (Okla. App. 1984)
Von Hake v. Thomas, 705 P.2d 766 (Utah 1985)
Wendleboe v. Jacobson, 10 Utah 2d 344, 353 P.2d 178 (1960)
Williams v. West Jordan City, 714 F.2d 1017 (10th Cir., 1983)
Other Authorities
Restatement (Second) Torts, §653
Restatement (Second) Torts, §660
Restatement (Second) Torts, §662
Restatement (Second) Torts, §665(2)
Restatement (Second) Torts, §666
Restatement (Second) Torts, §669
Restatement (Second) Torts, §672
Restatement (Second) Torts, §909
Utah Rules of Civil Procedure, Rule 9(g)
Utah Rules of Civil Procedure, Rule 15(b)
iv
STATEMENT OF ISSUES PRESENTED FOR REVIEW
The major issues presented on appeal are as follows: Was the
issue of wrongful discharge improperly submitted to the jury and was
the jury's finding on this issue unsupported by the evidence? Was
there insufficient evidence to support the jury's verdict regarding
malicious prosecution and were the instructions given to the jury
on that issue erroneous? Was the issue of punitive damages erroneously
submitted to the jury? Was the jury instruction regarding special
and general damages erroneous?
STATEMENT OF THE CASE
Nature of the Case
Shauna Hodges filed an action against her former employer,
Gibson's Products Co.f Inc., hereinafter, Gibson's, and Gibson's
former West Valley Store manager, Chad Crosgrove, hereinafter,
Crosgrove. Ms. Hodges alleged that defendants had maliciously
prosecuted her for theft of daily receipts, wrongfully discharged
her from her employment as a bookkeeper, and intentionally inflicted
emotional distress. Slander and libel claims were alleged and then
subsequently dismissed by Ms. Hodges.
Course of the Proceedings
This matter was tried to a jury before the Honorable John A.
Rokich on July 9-13, 1985.
Disposition
The jury entered a Special Verdict, finding Gibson's and
Crosgrove liable for malicious prosecution and Gibson's liable for
wrongful termination. The jury found Gibson's and Crosgrove not
-1-
liable for intentional infliction of emotional distress. The jury
awarded Mrs. Hodges $70,000 in compensatory damages and $7,000 in
punitive damages from Gibson's and $10,000 in compensatory damages
and $1,000 in punitive damages from Crosgrove.
Statement of the Facts
Shauna Hodges began working as a bookkeeper at Gibson's West
Valley Store in October, 1980. (Tr. 315) As bookkeeper, it was her
responsibility to balance the cash registers in use at the store on
a particular day. (Tr. 316, 371) She did this by counting all of
the checks, cash, charge slips and other forms of payment received
at each cash register in use on a particular day and reconciled the
totals received with the Z-tapes and detail tapes removed at the
time the store closed from those registers which had been in use
that day. (Tr. 194, 195, 197, 198, 318-320) The total receipts from
each register were recorded by Ms. Hodges on a form called the Daily
Report and then she prepared a bank deposit. (Ex. 8D and Tr. 318-320)
Chad Crosgrove was the manager of Gibson's West Valley Store
on September 3, 19 81. (Tr. 191-19 2) On that day, he closed the store
at approximately 9:00 p.m. (Tr. 192-193)
In closing out the cash registers in use that evening, Crosgrove
closed out or Z'd out the cash register by putting a key in the Z
position on the register. (Tr. 19 4, 195, 19 8) This produced the Z
tape containing the totals for the day. (Tr. 19 7) The cashiers then
removed everything from the register cash drawer, leaving only $100
in the drawer. (Tr. 19 3-195) The rest of the contents of each cash
register drawer were placed in a money bag marked with the number of
the cash register. (Tr. 195, 196, 198, 199) The register drawer
-2-
containing $100, the money bag and the Z tape were then brought by
the cashier to the service desk. (Tr. 196, 197, 199)
All of the money bags from the cash registers used that day
were put in a bag along with the Z-tapes. The bag was then placed in
the safe along with the cash register drawers. (Tr. 203, 204, 210,
211f 212)
On the following morning, September 4, 1981, Crosgrove opened
the store. (Tr. 217) He opened the safe, removed some of the cash
drawers and placed them in the cash registers which he felt he would
need for that day. (Tr. 217f 241) A paper sack containing the cash
register money bags and the Z-tapes from September 3, 1981 was left
in the safe. (Tr. 241)
When Shauna Hodges came to work on the morning of September 4,
1981, she contacted Crosgrove to obtain the bag containing the
individual cash register money bags and cash register tapes from the
previous day. (Tr. 323) The bag containing the money bags and cash
register tapes was taken upstairs to Ms. Hodges1 office, a room with
a locked door, known as the "security room". (Tr. 317, 321-324)
In her office, Shauna Hodges then proceeded with her daily
procedure of reconciling the receipts of each cash register with the
cash register tapes in preparation of the Daily Report and deposit.
(Tr. 318, 319, 371, 372) Entries on the Daily Report were arrived at
by first totalling the receipts at each register and then adding the
amounts received in all of the registers to arrive at the total for
the day. (Tr. 375, 376) Shauna Hodges completed her procedure and
turned the Daily Report and bank deposit in to Crosgrove at about
1:00 p.m.. (Tr. 324) She left work shortly thereafter. (Tr. 324)
-3
Later on that day, the assistant manager, Glen Murray, reviewed
the Daily Report and noticed that cash register #4 was not listed on
it. (Tr. 251, 252) He asked Crosgrove whether that register had been
in use on September 3, 1981, and Crosgrove confirmed that it had.
(Tr. 252) Crosgrove telephoned Shauna Hodges and asked her about
register #4. (Tr. 253) Shauna Hodges indicated that she would return
to the store. (Tr. 253)
Crosgrove and Glen Murray went upstairs to the security room
to look for the receipts from register #4. (Tr. 252, 253, 255) They
found part of a cash register Z-tape from register #4 in the security
room garbage. (Tr. 258-260) Crosgrove then telephoned the Murray
store and was requested to bring the deposit, the Daily Report and
other information prepared with the Daily Report to the Murray store
for review by Ron Harris, accountant/auditor for Gibson's. (Tr. 261,
265, 458)
Ron Harris met with Crosgrove at the Gibson's Murray Store in
an effort to determine what had happened. (Tr. 459) Ron Harris and
Crosgrove then went to the West Valley Store, where they, along with
Glen Murray, continued the investigation in the security room. (Tr.
266, 461) As part of their investigation, Harris, Crosgrove and
Murray went through the security room wastepaper can, which had been
secured by Glen Murray earlier. (Tr. 266, 463)
Examination of the garbage can contents revealed items whic
indicated that register #4 had been in use on September 3, 19 81, ar
that the register #4 money bag had made it up to the security offic
on September 4, 1981. (Exs. 10D, 11D, 12D, Tr. 278-283, 463, 46'
The garbage contained voids from register #4, various adding machir
-4-
tapes which correlated to the totals entered on the Daily Report, the
Z-tape from register #4 and deposit slips from a checking account
for James B. or Shauna F. Hodges. (Exs. 10D, 11D, 12D, 17D, 20D, 21D,
Tr. 259, 266, 287, 288, 463, 492, 494, 501) A void slip representing
sales incorrectly rung on register #4 on September 3, 19 81, was found
between Shauna Hodges1 checking account deposit slips. (Tr. 267,
279, 287, 288)
The investigation by Harris indicated that checks received at
register #4 were included with the deposit for funds received with
register #2. (Tr. 459, 465) This was discerned by comparing the
checks received with the detail tapes from the cash registers. (Tr.
29 3, 465) The back of each check had a transaction number which
corresponded with the transaction number on the detail tape of a
particular cash register. (Tr. 465) Checks included with the deposit
prepared by Shauna Hodges on September 4, 1981, indicated that they
were received at register #4 on September 3, 19 81. (Tr. 291, 292,
29 3) The Daily Report, however, reflected no transactions on register
#4 on that day. (Ex. 8D, Tr. 466)
Harris1 investigation revealed that an amount equivalent to the
total sales rung on register #4, $580.66, was not included with the
deposit, nor was register #4 included on the Daily Report. (Ex. 8D,
Tr. 466, 478, 479) However, checks received at register #4 were
included with the deposit and evidence indicating use of register #4
on September 3, 1981, was found in the security room wastebasket.
(Tr. 259, 260, 266, 287, 463, 478, 479, 492, 494)
Shauna Hodges, on her return to the store on September 4, 1981,
after the telephone call from Crosgrove, was asked why she had torn
-5
up and thrown away the Z-tapes from register #4. (Tr. 259) She
replied that she thought it had all zeroes on it. (Tr. 259)
On September 8f 19 81f a meeting was held at the Murray store.
(Tr. 330) Shauna Hodges, her husband, Chad Crosgrovef Ron Harris,
Dale Birch, Gibson's controller at that time, and Bob Cornettf the
general manager at that time, were present. (Tr. 51, 269, 330) At
the meeting, Shauna Hodges denied taking the money. (Tr. 331)
On September 9, 1981, Chad Crosgrove, Ron Harris and Bob Cornett
went to the offices of Detective Lyday of the West Valley City Police
Department and reported the missing money. (Tr. 11, 25, 26, 27, 271)
Detective Lyday made an initial report of the information received.
(Ex. 3-P, Tr. 37) Detective Lyday contacted Shauna Hodges by telephone
but she declined to talk to him without an attorney. (Tr. 45)
Detective Lyday filed his report with the County Attorney's Office.
(Tr. 37)
Based upon Detective Lyday's report, Lee Dever, Deputy County
Attorney, commenced prosecution of Shauna Hodges. (Tr. 99, 100)
Detective Lyday's investigation indicated that there was probable
cause to believe that Shauna Hodges had committed theft and Mr. Dever
issued an Information. (Ex. 5-P, Tr. 108, 112) A preliminary hearing
was held at which time the cash register tapes and items from register
#4 were presented. (Tr. 112) Shauna Hodges was bound over at the
preliminary hearing. (Tr. 48)
Before the trial of Shauna Hodges, Mr. Dever learned from someone
at Gibson's that Crosgrove had been discharged from Gibson's for
embezzlement. (Tr. 103, 106) Mr. Dever determined that Crosgrove
would not be a credible witness against Shauna Hodges and moved to
-6-
dismiss the charges against her, (Tr. 103, 111, 112) His motion to
dismiss was not a statement that Shauna Hodges was not guilty of
theft but just that Lee Dever had elected not to proceed with the
case against her. (Tr. 112) The criminal action against Shauna
Hodges was dismissed by the court. (Tr. 107)
Summary of Argument
Shauna Hodges, plaintiff-respondent, did not allege that she
was employed by Gibson's for a specific term. She did not consider
herself to be anything but an at-will employee. Because Utah law
does not recognize any exceptions to the rule that an at-will employee
may be discharged at any time with or without good cause, Ms. Hodges
was not entitled to submit the issue of wrongful discharge to the
jury. The Court's submission of this issue for the jury's
consideration was not only erroneous, but prejudicial to the case
of defendants-appellants.
The plaintiff-respondent's cause of action for malicious
prosecution also should have been disposed of by the Court before
submission to the jury because the plaintiff-respondent failed to
prove essential elements of her cause of action. The defendants-
appellants had probable cause to go to the prosecuting authorities
with the information available to them in September, 1981.
Gibson' s and Crosgrove were entitled to then rely on the decisions
of the police and prosecuting attorney as to the sufficiency of the
evidence they had produced.
Plaintiff-respondent produced no evidence that any employee or
agent of Gibson's interfered with the prosecutors' discretion in
regard to the prosecution of Ms. Hodges. The plaintiff-respondent
-7-
produced no evidence that information was withheld by defendants-
appellants from the prosecuting authorities with regard to the loss
from register #4 on September 3, 19 81.
All of the evidence pointed to the existence of probable cause
to prosecute Ms. Hodges at the time the Gibson's employees went to
the police. This evidence also negates the existence of malice in
the actions of defendants-appellants.
Plaintiff-respondent further failed to prove that the criminal
action was terminated in her favor. The exigencies of the prosecutor's
busy schedule and the inexperience of defendants-appellants in matters
of this sort are as plausible explanations for the dismissal as the
innocence of plaintiff-respondent.
Several of the Court's instructions with regard to malicious
prosecution either misstate the law (Instruction #34), misinterpret
the facts (Instruction #30) f or prejudice the defendants-appellants
by their wording (Instruction #26). The combined effect of these
erroneous instructions was prejudicial to the defendants-appellants
and, in effect, direct the jury's verdict for the plaintiff-
respondent.
The trial court's submission of punitive damages was also
erroneous. On the state of the facts adduced at trial, the
extraordinary remedy of punitive damages was unjustified because the
defendants-appellants did not exhibit willful and malicious conduct
or reckless indifference to plaintiff-respondent. On the contrary,
they were exhibiting a business judgment based on the facts available
to them at the time they went to the police.
-8-
There was no submission to the jury of issues concerning Gibson's
imputed liability. However, even if plaintiff-respondent had been
able to prove that Chad Crosgrove had instigated a prosecution of
plaintiff-respondent to hide his own misdeeds, no liability for his
actions could be imputed to Gibson's. There was no proof that Mr.
Crosgrove f acting to cover his own misdeeds, was acting in furtherance
of his employer's interests or that Gibson's was negligent in either
employing or retaining him. These are the only two bases upon which
Gibson's could be held liable to plaintiff-respondent for the willful
act of malicious prosecution by its agents.
The court improperly submitted the issue of damages to the jury.
The court's instruction states amounts which exceed the prayer of
the plaintiff-respondent's complaint. The defendants-appellants
were prejudiced by an increased verdict award as a result of this
misstatement. Additionally, plaintiff-respondent failed to present
specific, well-founded evidence with regard to her special damages.
The jury was left to speculate with regard to her actual damages to
the detriment of defendants-appellants.
ARGUMENT
POINT I: THE ISSUE OF WRONGFUL DISCHARGE WAS IMPROPERLY SUBMITTED TO THE JURY
A. WRONGFUL DISCHARGE IS NOT A CAUSE OF ACTION IN UTAH
This Court has consistently applied the "terminable-at-will"
doctrine to the discharge of employees who are not employed for a
definite term. The court stated the general principle in Bihlmaier
v. Carson, 603 P.2d 790 (Utah 1979), as follows:
-9-
.•.in the absence of some further express or implied stipulation as to the duration of the employment or of a good consideration in addition to the services contracted to be rendered, the contract is no more than an indefinite general hiring which is terminable at the will of either party. 603 P.2d 790, 792.
See also: Williams v. West Jordan City, 714 F.2d 1017 (10th Cir.f
1983); Held v. American Linen Supply, 6 Utah 2d 106, 307 P. 2d 210
(1957); Crane Co. v. Dahle, 576 P.2d 870 (Utah 1978).
In Amos v. Corp. of Presiding Bishop of Church of Jesus Christ
of Latter-Day Saints, 594 F. Supp. 791 (D. Utah 1984), the federal
court rejected plaintiffs1 argument that the court should imply an
exception to the "at-will" doctrine set forth in Bihlmaier, supra.
The court stated:
Here, the Utah Supreme Court has never recognized an exception to the terminable-at-will doctrine in any of its cases and has not indicated that it would recognize an exception under certain circumstances. 594 F. Supp. 791, 829, fn 73.
The jury in this case, however, was instructed otherwise. They
were instructed, in fact, that there is an exception to the terminable-
at-will rule. Instruction No. 43 (R. 442) given to the jury reads
as follows:
Plaintiff was free to quit her employment with defendant at any time, and defendant was free to discharge plaintiff at any time without cause. However, if you find from a preponderance of the evidence that the plaintiff was discharged on the basis of a false criminal accusation known to defendant Gibson Products Company to be false, then you may find the defendant Gibson Products Company guilty of wrongful discharge of the plaintiff.
This instruction is contrary to Utah law.
A number of courts have rejected an employee's attempt to
introduce exceptions to the at-will doctrine. In Daniel v. Magma
-10-
Copper Co., 127 Ariz. 320, 620 P.2d 699 (Ariz. App. 1980) , the Arizona
court held that adhering to the rule proposed by plaintiff (i.e.,
that bad faith discharge was contrary to public policy and harmful
to the economic system) would subject an employer to a lawsuit each
time an at-will employee is discharged. In addition, the court
would, in effect, be rewriting the employment contract.
The Illinois court declined to introduce an exception to the
rule because the court would be forced to replace the employer's
business judgment with its own. Criscione v. Sears, Roebuck & Co>,
66 111. App. 3d 664, 23 111. Dec. 455, 384 NE 2d 91 (1978).
In Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.
1977) and Jones v. Keogh, 137 Vt. 562, 409 A.2d 581 (1979), both
courts expressed concern that instituting exceptions as proposed by
the plaintiffs would create too nebulous a standard for the courts
to apply.
The policy adhered to by these courts and the Utah court, weighs
in favor of allowing employers to make business decisions with regard
to their policies and procedures, and who should be employed to
conduct the business.
Mrs. Hodges has never contended that she had any contract with
Gibson's which specified the term of her employment. There were no
specific procedures or policies which Gibson's would be required to
follow in terminating an at-will employee. Gibson's did not need
to show a specific reason or motive for termination. The presentation
of this issue to the jury was erroneous.
11-
B. THE JURY'S FINDING ON THIS ISSUE IS UNSUPPORTED BY THE EVIDENCE
Even if the issue of wrongful discharge was properly submitted
to the jury, and the instruction to the jury thereon was a correct
statement of Utah law, the jury's finding on this issue is wholly
unsupported by the evidence. There is no evidence that Shauna Hodges
was discharged by a false criminal accusation known by defendant-
appellant Gibson Products Company to be false.
Dale Birch, Gibson's controller at the time the events in
question in this case occurred, stated in his testimony that Shauna
Hodges had responsibility and control of the cash and funds and
register receipts from the time they were given to her. Since she
denied that anyone else was involved in changing the records, he
assumed that she made the changes. (Tr. 56-57)
The evidence supports a finding that Gibson's believed the
accusation against Ms. Hodges to be true.
POINT II: THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JURY'S VERDICT REGARDING
MALICIOUS PROSECUTION
A. PLAINTIFF-RESPONDENT FAILED TO PROVE THAT DEFENDANTS DID NOT HAVE PROBABLE CAUSE AND ACTED WITH MALICE, AND THAT THE CRIMINAL PROCEEDING WAS TERMINATED IN HER FAVOR
The basic elements of a cause of action for malicious prosecution
are contained in Restatement (Second) Torts, § 653, which states:
A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if
-12-
(a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and
(b) the proceedings have terminated in favor of the accused.
Each of these elements must be proved by Ms. Hodges to prevail. Her
proof in this action failed in that she failed to prove that either
Gibson's or Crosgrove did not have probable cause to bring charges,
that defendants-appellants acted primarily for a purpose other than
that of bringing an offender to justice or with malice, and that the
action was terminated in favor of Shauna Hodges.
Probable cause, as used in this context, refers to known facts
existing at the time of filing the action and that defendants-
appellants1 belief in the substance of the charges was reasonable.
Patterson v. City of Phoenix, 103 Ariz. 64, 436 P.2d 613 (1968);
Tulsa Radiology Assoc, Inc. v. Hickman, 683 P.2d 537 (Okla. App.
1984). The Restatement (Second) Torts, § 662, states the following
concerning the existence of probable cause:
One who initiates or continues criminal proceedings against another has probable cause for doing so if he correctly or reasonably believes
(a) that the person whom he accuses has acted or failed to act in a particular manner, and
(b) that those acts or omissions constitute the offense that he charges against the accused, and
(c) that he is sufficiently informed as to the law and the facts to justify him in initiating or continuing the prosecution.
At the time employees of Gibson1 s went to the police, they knew
the following: On September 4, 19 81, Mrs. Hodges received the bag
-13
containing the receipts of business for September 3, 19 81. They
were taken to the locked security office and only Mrs. Hodges was
present during the accounting process. When she completed the
accounts, Mrs. Hodges locked the security office door and took the
accounts to the manager, who put them in the safe pending deposit.
A discrepancy was noted in the Daily Report, in that there were no
totals for register #4, which had been used the previous day. Closer
investigation of the receipts in comparison to the cash register
tapes revealed that cash had been deducted from register #2 and
checks of equal value from register #4 substituted. The garbage can
from the security office contained the register Z-tape from register
#4 which was torn, along with a void from register #4 torn inside a
deposit slip from Ms. Hodges1 checking account and calculator tapes
which totalled the checks from each drawer. When Ms. Hodges was
questioned about these items, she stated that she had thrown away
the tape from register #4 because she thought it was all zeroes and
offered no other possible explanation for the discrepancy.
When the employees of Gibson's went to the police with this
information, they were not aware of what evidence would be required
to bring a charge against Ms. Hodges. From the evidence presented,
the police took the information to the county attorney who stated in
his testimony that probable cause existed at the time of filing.
(Tr. 112)
The burden of proof is upon plaintiff-respondent to show that
this evidence was not sufficient to support a charge of theft at the
time the charge is brought. Tulsa Radiology Assoc, Inc. v. Hickman,
supra.; Bird v. Rothman, 128 Ariz. 599, 627 P.2d 1097 (Ariz. App.
-14-
1981); Restatement (Second) Tortsf § 672. With the information set
forth above, there was reasonable and probable cause for defendants-
appellants to go to the authorities.
Reliance upon the advice of counsel in pressing charges,
including the advice of a public prosecutor, negates lack of probable
cause, where the advice is sought in good faith and with full
disclosure of the facts within the accuser's knowledge. Perkins v.
Stephens, 28 Utah 2d 436, 503 P.2d 1212 (1972); Wendleboe v. Jacobson,
10 Utah 2d 344, 353 P.2d 178 (1960); Cottrell v. Grand Union Tea Co.,
5 Utah 2d 187, 299 P.2d 622 (1956); Restatement (Second) Torts, §§
653, comment g; 666. The plaintiff-respondent contended in this
action that full and fair disclosure was not made to the prosecutor
in this case. It is evident, however, that the report prepared by
Officer Lyday (Ex. 3), and the subsequent information filed by the
county attorney (Ex. 4), contain the information provided by the
testimony of the employees of Gibson's who testified at trial of
this matter.
There is no evidence from the testimony of either Officer Lyday
or County Attorney Dever that any employee of Gibson's interfered
with the decision to prosecute Mrs. Hodges. Indeed, the evidence is
to the contrary. At the time the prosecution commenced, defendants-
appellants had a reasonable belief that the information presented
to the prosecuting authorities was sufficient to support the charges.
That belief negates at least the lack-of-probable-cause element and
most likely, the existence of malice. Restatement (Second) Torts,
§ 669
-15-
Plaintiff has additionally relied on the fact that the charges
were eventually dismissed to show that probable cause did not exist
at the time of filing charges. The very nature of the process of
criminal litigation would make such an assertion not only illogical,
but unfair. As the court stated in Patterson v. City of Phoenix,
103 Ariz. 64, 436 P.2d 613 (1968), "There could be any number of
reasons for dismissal having no bearing whatsoever on the existence
of probable cause at the time the charges were filed." 436 P.2d 613,
619. The Restatement (Second) Torts, § 665(2), states that "The
abandonment of criminal proceedings by a public prosecutor acting
on his own initiative after the prosecution has passed into his
control, is not evidence that the private prosecutor acted without
probable cause."
Looking at the present case, the exigencies of a busy prosecution
calendar had an impact on a decision to dismiss the prosecution of
plaintiff-respondent. On the day before the trial was scheduled,
he learned from someone at Gibson's that Mr. Crosgrove, his chief
witness, had terminated his employment as a result of his embezzlement
from Gibson's. Obviously, this would undercut Mr. Crosgrove's
testimony and Mr. Dever's ability to revise his trial preparation
and strategy. The fact that the situation had changed from the time
of filing the information and the trial does not negate the existence
of probable cause at the time of filing the charges. Mr. Dever,
himself, stated that he believed that there was probable cause at
the time charges were filed to believe that Shauna Hodges committed
theft. (Tr. 108, 112) He further stated that his decision to move
to dismiss the charges against Ms. Hodges was not a statement that
-16-
she was not guilty of theft but rather one that he elected not to
proceed with the case against her. (Tr. 112)
B. THE COURT GAVE INSTRUCTIONS TO THE JURY WHICH WERE ERRONEOUS BECAUSE THEY ARE CONTRARY TO THE EVIDENCE ADDUCED AT
TRIAL AND TO UTAH LAW
For the same reasons as presented above, it is questionable
whether the criminal proceedings were terminated in favor of plaint-^.
and not merely dismissed because of the difficulty mounting the
revised prosecution on short notice. Generally, abandonment of
proceedings because a conviction has become impossible is a sufficient
termination in favor of the accused. Restatement (Second) Torts, §
660, comment d. Instruction #30 (R. 429) given to the jury, however,
directs a finding on this issue in favor of Ms. Hodges. Instruction
#30 reads as follows:
I hereby instruct you that the criminal action against the plaintiff was dismissed by the court and that it was therefore terminated favorably on behalf of the plaintiff.
In this case, there is no proof that the dismissal of plaintiff was
based upon her innocence.
Plaintiff-respondent has also alleged that full and fair
disclosure could not have been made because, in the words of the
Court's instruction #34 (R. 433), Gibson's should have been "entirely
familiar with facts..." and sufficiently informed "to initiate
criminal proceedings without further investigation." This direction
from the trial court is unsupported by case law and is totally
unreasonable, especially in light of the evidence that defendants-
-17-
appellants relied on the advice of the prosecutor in evaluating the
sufficiency of evidence.
The court imposes a duty upon a complainant "to make some
reasonable search and inquiry before filing the criminal complaint,"
but no duty to exclude all other possibilities. Potter v. Utah Driv-
Ur-Self System, Inc., 11 Utah 2d 133, 355 P.2d 714 (1960), at 717.
It would seem reasonable that defendants-appellants could rely upon
the prosecuting authorities to either direct Gibson's employees to
gather more information, if necessary, or to conduct any other
necessary investigation independently. It is evident from their
testimony that neither Officer Lyday nor Mr. Dever felt the necessity
of making further investigation.
The courtfs instructions were additionally erroneous in that
they frequently refer to "guilt" of defendants-appellants. The
initial instruction entitled, "Elements of Malicious Prosecution,"
implies that defendants-appellants are criminally responsible for a
finding of malicious prosecution by using-the word "guilty" several
times within the instruction. Instruction #26 (R. 425). Such a
connotation works to prejudice defendants-appellants and, since it
is the basic instruction with regard to that cause of action, it
unfairly sets the minds of the jury in the criminal guilt-innocence
context.
The combined effect of these erroneous instructions was, in
effect, to direct the jury's finding in favor of the plaintiff-
respondent on the issue of malicious prosecution.
-18-
POINT III: THE ISSUE OF PUNITIVE DAMAGES WAS ERRONEOUSLY SUBMITTED TO THE JURY
This Court has consistently held that punitive damages should
be awarded only in the most extraordinary of circumstances. The
award must serve the dual purpose of punishment and as an example
to others disposed to the same behavior. Thus, the court has reserved
punitive damages for cases in which the defendant's conduct has
approached intentional. Synergetics v. Marathon Ranching Co., Ltd. y
701 P.2d 1106 (Utah 1985); Von Hake v. Thomas, 705 P.2d 766 (Utah
1985); Behrens v. Raleigh Hills Hospital, 675 P.2d 1179 (Utah 1983).
The law requires that plaintiff establish that defendant's
conduct was willful and malicious or manifested a knowing and reckless
indifference toward, and disregard of, the rights of others. Behrens,
supra. The defendants-appellants in this case have shown that their
actions were prompted by a reasonable belief that Ms. Hodges committed
a theft. A reasonable belief of Ms. Hodges1 guilt, negates the
willful and malicious or reckless state of mind necessary to support
a claim for punitive damages.
The present case does not come within the parameters for which
punitive damages are awarded. Businesses must be allowed to make a
business decision concerning an employees1 continued employment and
whether to prosecute an employee suspected of criminal conduct.
Malicious prosecution actions are not favored in the law because
they tend to discourage criminal proceedings against those who appear
guilty. Bearup v. Bearup, 122 Ariz. 509, 596 P.2d 35 (Ariz. App.
1979); Orser v. State, 582 P.2d 1227 (Mont. 1978); Lampos v. Bazar
Inc., 527 P.2d 376 (Ore. 1974). Certainly, imposition of punitive
-19-
damages in such a case as this would have a further chilling effect on
an employer attempting to bring an employee to justice.
There is no evidence that any of Gibson's employees acted
willfully or maliciously in presenting evidence to the prosecutors
or in terminating plaintiff-respondent's employment. There is
evidence that Mr. Crosgrove took merchandise from Gibson's without
paying for it and used money from deposits by delay in making those
deposits. He was thus able to replace the money with the next day's
receipts. (Tr. 274, 307, 312-314, 486-487) This was not the method,
however, used by the person who diverted the proceeds of register #4
on September 3, 1981. It would certainly not have been of any benefit
to Mr. Crosgrove, if he was guilty of the theft, to bring it to the
attention of the authorities. Further, Mr. Crosgrove has denied
that he was responsible for the theft. (Tr. 302) Thus, if it was
the intent of plaintiff-respondent to show that Mr. Crosgrove acted
willfully and maliciously in reporting the loss to the prosecuting
authorities, that proof failed.
Even ijE plaintiff-respondent had proved that Mr. Crosgrove took
the money and sought prosecution of plaintiff-respondent to cover
his own misdeeds, such activity could not fairly be imputed to Mr.
Crosgrove's employer, Gibson's, and punitive damages should not have
been awarded against Gibson's for the actions of Crosgrove. The
employer may not be held liable for the willful tort of its employee
unless the tort was committed in furtherance of the employer's
interests [Barney v. Jewel Tea Co., 104 Utah 292, 239 P.2d 878 (1943) ]
or if the employer was negligent in employing or retaining the
employee. Stone v. Hurst Lumber Co., 15 Utah 2d 49, 386 P.2d 910
-2U-
(1963). Restatement (Second) Torts § 909. Comment (b) to Restatement
(Second) Torts, § 909 explains that the restrictions on awarding
punitive damages against the master or principal because of the act
of an agent stem from the reasons for awarding punitive damages,
"which make it improper ordinarily to award punitive damages against
one who himself is personally innocent and therefore liable only
vicariously."
Neither the issue of whether Crosgrove was acting in furtherance
of Gibson's interests nor that of whether Gibson's was negligent in
employing or retaining him was submitted to the jury for resolution.
Moreover, there was no evidence to support either assertion.
Gibson's certainly would in no way benefit from the actions of
Mr. Crosgrove if he had been covering up his own theft. That would be
an act directly contrary to the interests of Gibson's.
There was no evidence presented by plaintiff to show that
Gibson's was negligent in either hiring or retaining Mr. Crosgrove,
nor was there evidence that Gibson's knew of any improper conduct on
Mr. Crosgrove's part at the time of going to the police. (Tr. 486-
487) Thus, if it was proved that Mr. Crosgrove was using the
prosecution of Mrs. Hodges to avoid his own punishment, this could,
in no way, be attributed to defendant Gibson's. No societal interest
is served by awarding punitive damages against Gibson's and such an
award is inappropriate.
-21-
POINT IV: THE JURY INSTRUCTION REGARDING SPECIAL AND GENERAL DAMAGES WAS ERRONEOUS IN THAT IT DID NOT CONFORM TO THE PLEADINGS
A. SHAUNA HODGES DID NOT SPECIFICALLY PLEAD SPECIAL DAMAGES OR GENERAL DAMAGES IN THE AMOUNT OF $200,000 AND SHOULD THEREFORE
BE PRECLUDED FROM RECOVERY
The respondent's complaint alleged that as a result of
defendant's conduct,
...plaintiff has been injured and suffered damages including, but not limited to, loss of wages, medical expenses, severe emotional distress, and mental anguish requiring professional therapy, and further pain and suffering at least in the amount of $75,000.00, the full extent of which has not been determined, and which will be established by proof at time of trial." (R. 2-11)
In her prayer for relief, plaintiff prayed for judgment,
1. In the sum of $75,000.00 and such other sum as plaintiff shall establish by proof at time of trial;
2. Exemplary damages at least in the amount of $100,000.00;
3. For costs of suit incurred herein, including reasonable attorneys fees; and
4. For such other and further relief as the court deems just.
In Jury Instruction No. 11 (R. 410), the jury is correctly
instructed that:
In this, as in every suit for damages, the parties are required to allege the amount of damages claimed, and under no circumstances could there be an award of damages in excess of the amount demanded, but the amount thus alleged constitutes no evidence and is no indication of the amount to which a party may be entitled....
(Similarly, JIFU 90.1).
-22-
In Jury Instruction No. 46 (R. 445 ) f however, the jury is told
that:
The plaintiff alleges that by reason of her claimed injuries, for which she claims the defendants are liable, she has sustained general damages in the sum of $200,000.00 for severe emotional distress, mental anguish and pain and suffering, and has lost an additional sum of $26,515.00 on account of the cost of the therapy that she has undergone as a result of the malicious prosecution, loss of wages, and costs of legal fees for defense of the criminal proceedings.
These allegations are not evidence but are merely the extent of the plaintiff's claims, and must not be considered by you as evidence in the case.
Plaintiff's Complaint was never amended to specifically allege
her special damages nor to include general damages in the amount of
$200,000.00. Plaintiff's failure to specifically state the extent
of her special damages prior to the time of trial should preclude
her recovery. As this Court explained in Graham v. Street, 2 Utah
2d 144, 270 P.2d 456 (1954), the purpose of such specific pleading is
to apprise the defendant of the extent of damage and to guide the
parties and the court in preparation and deliberations. (See also
Rule 9(g), Utah Rules of Civil Procedure) Without such guidance,
the defendant is placed at a severe disadvantage in meeting the proof
presented at trial. In this case, defendants-appellants were
prejudiced by the failure of plaintiff-respondent to specifically
state her special damages.
Plaintiff-respondent made no prayer for general damages in the
amount of $200,000 until the court was to instruct the jury. Plaintiff-
respondent made no motion to amend pursuant to Rule 15(b) of the
Utah Rules of Civil Procedure, and defendants-appellants therefore
-0-5-
had no opportunity to show that they were prejudiced by such amendment
at the time of trial. At the time the trial commenced, defendants-
appellants were entitled to rely on the amount pled in plaintiff's
Complaint as the limit to their liability in this case. Yet the jury
was instructed that the plaintiff had alleged that she had sustained
general damages in the amount of $200,000.00. In his final argumentf
the plaintiff's counsel compounded the prejudice by stating that
$200 f 000 was the "price" plaintiff put on her alleged pain and
suffering. (Supp. Tr. 16) This is clearly erroneous and the jury's
verdict based on the erroneous instruction and the argument of
plaintiff's counsel is contrary to Utah law and the evidencef and
highly prejudicial to the defendants.
B. THE EVIDENCE PRESENTED BY SHAUNA HODGES WITH REGARD TO HER SPECIAL DAMAGES DID
NOT SUPPORT HER CLAIM OR THE JURY'S AWARD
In his final argument, plaintiff's counsel stated:
There are $24,515 in actual damages. Look at medical bills, just the ones that were attributed to Shauna. Look at her wages. She was only making $4,9 35 a year. Look at what she made in '81, '82 and since then. Look what she paid in legal fees. She was only making 4,000 and it cost her 24,000. (Supp. Tr. 15)
The plaintiff offered in proof of her medical expenses only the
testimony of Dave Christensen, a clinical social worker, and a
statement from County Mental Health Services (Exh. 26-P). Mr.
Christensen testified that he charged plaintiff $45 per hour for
approximately weekly hour sessions from June, 1984. (Tr. 159) Upon
further questioning, however, Mr. Christensen was unable to
distinguish which of the entries on Exh. 18-P, his statement for
-24-
services, were attributable to treatment of Shauna Hodges, alone,
as opposed to treatment of her family. (Tr. 160, 162, 164, 175) He
further admitted that the behavior of Ms. Hodges' son had an adverse
effect upon Ms. Hodges' emotional condition both before and after
her arrest. (Tr. 165-166) Additionally, Mr. Christensen stated that
his estimate of six months further treatment for Ms. Hodges was merely
a guess. He could be no more specific. (Tr. 178) Plaintiff-
respondent's testimony with regard to the County Mental Health
Services bill purported to distinguish between her individual therapy
and the therapy offered to her entire family. She was not able to
testify that those treatments were necessarily incurred as a proximate
result of defendants-appellants' conduct nor that the cost for such
services was reasonable. (Tr. 353-355)
In support of her legal defense expensesf plaintiff-respondent
offered only statements (Exh. 24-P) from Gilbert Athay, her second
attorney, and two checks to Dean Mitchellf her first attorney. (Exh.
25-P) The total expense represented by these exhibits was $3f500.
The $2,000 payment to Mr. Mitchell was challenged by plaintiff-
respondent, although she did not actually file suit to recover the
amount paid. (Tr. 39 3-39 4)
The jury was presented with only the preceding evidence which
left them to speculate both as to the amount of plaintiff's special
damages and as to whether those expenses were reasonably incurred as
a result of her arrest and termination. Such unsubstantiated damages
should not have been submitted to the jury.
-25-
CONCLUSION
The jury's verdict in this case should be set aside. The verdict
was based on erroneous instruction from the trial court with regard
to wrongful discharge, malicious prosecution, and damages. There
was unsufficient evidence to submit to the jury the issues of wrongful
discharge, malicious prosecution, punitive damages, or special
damages. None of the bases for plaintiff-respondent's suit or the
jury's verdict were supported by the evidence.
Respectfully submitted this y ^ ~ day of April, 19 86.
BAYLE, HANSON, NELSON & CHIPMAN
^ ̂ ^-^ti^^A F. ROBERT BAYLE
^
OA^-ANDREA C. ALCABES Attorneys for Defendants-Appellants
CERTIFICATE OF SERVICE
I hereby certify that I mailed four copies of the foregoing
BRIEF OF DEFENDANTS-APPELLANTS to Thomas R. Karrenberg, HANSEN &
ANDERSON, attorneys for Plaintiff-Respondent, at 50 West Broadway,
Sixth Floor, Salt Lake City, Utah 84101, on this / A ^ d a y of April,
1986.
BAYLE, HANSON, NELSON & CHIPMAN
RORFRT RAYT.R V F. ROBERT BAYLE Attorney for Defendants-Appellants
-26
JUL 2 3 1385
IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT
IN AND FOR SALT LAKE COUNTY, STATE OF UTAH
iAUNA F. HODGES,
Plaintiff,
vs.
[BSON PRODUCTS COMPANY, dba IBSON'S DISCOUNT CENTER, a tah corporation, and CHAD ROSGROVE, an individual,
Defendants.
SPECIAL VERDICT
CIVIL NO. C-83-6026
1. Do you find the defendant Gibson Products Co. liable
or malicious prosecution?
Yes )/( No
2. Do you find defendant Gibson Products Co. liable for
ntentionally inflicting severe emotional distress upon the
laintiff?
Yes No y
3. Do you find the defendant Gibson Products Co. liable
or wrongful termination of the plaintiff?
Yes /*C No
If you answered " y e s " to any of the above , then answer
o s . 4 and 5. If you answered "no" to each of Nos. 1, 2 and
i above, then do not proceed to Nos. 4 and 5, proceed d i r e c t l y
:o No. 6.
ADDENDUM
- 2 7 -
4* State the amount of compensatory damages to be awarded
plaintiff against defendant Gibson Products Co.
5. State the amount of punitive damages to be awarded
to plaintiff against defendant Gibson Products Co.
6. Do you find the defendant Chad Crosgrove liable for
malicious prosecution?
Yes y<( No
1. Do you find the defendant Chad Crosgrove liable for
intentionally inflicting severe emotional distress upon the
plaintiff?
Yes No X
If you answered "yes" to either No. 6 or No. 7, then answer
Nos. 8 and 9. If you answered "no" to both Nos. 6 and 7, then
do not proceed to answer Nos. 8 and 9.
8. State the amount of compensatory damages to be awarded
to plaintiff against defendant Chad Crosgrove.
$ /&<£&<£ y
9. State the amount of punitive damages to be awarded
to plaintiff against defendant Chad Crosgrove.
10. Do you find that the plaintiff converted funds of the
defendant Gibsons Products Co. as alleged in the counterclaim?
Yes No X
-28-
11. If you answered "yes" to No. 10, what was the amount
lereof?
DATED: J uly /S , 1985.
FOREMAN
-29-
INSTRUCTION NO. 31
The officers and agents of Gibson Products Co. should have
een entirely familiar with the facts and circumstances surrounding
.he allegations they made to the West Valley Police concerning
.he plaintiff. They were required to be sufficiently informed
>f the facts to initiate the criminal proceedings without any
iurther investigation.
-30-
PLAINTIFF'S REQUESTED INSTRUCTION NO.—3 ^O
I hereby instruct you that the criminal action against
3 plaintiff was dismissed by the court and that it was
erefore terminated favorably on behalf of the plaintiff.
-31-
INSTRUCTION NO,
Elements of Malicious Prosecution
Plaintiff has alleged that defendants maliciously caused
iminal proceedings to be brought against her. To find either
both defendants guilty of malicious prosecution, plaintiff
ist establish the following elements by preponderance of the
ridence:
(a) that the defendants initiated or procured the institution
: criminal proceedings against plaintiff who was not guilty
: the charge, and that the defendants initiated or procured
le proceedings without probable cause and primarily for a purpose
zher than that of bringing an offender to justice; and
(b# the proceedings have terminated in favor of the accused.
If you find by a preponderance of the evidence that plaintiff
is proved all of the elements, then you may find the defendants
jilty of malicious prosecution.
24
-32-
INSTRUCTION NO.
Plaintiff was free to quit her employment with defendant
at any time, and defendant was free to discharge plaintiff at
any time without cause. However, if you find from a preponderance
of the evidence that the plaintiff was discharged on the basis
of a false criminal accusation known to defendant Gibson Products
Co. to be false, then you may find the defendant Gibson Products
Co. guilty of wrongful discharge of the plaintiff.
-33-
INSTRUCTION NO. //
In this, as in every suit for damages, the parties
:e required to allege the amount of damages claimed, and under
) circumstances could there be an award of damages in excess
: the amount demanded, but the amount thus alleged constitutes
D evidence and is no indication of the amount to which a party
ay be entitled. The fact that the court has instructed you
Dncerning damages is not to be taken as any indication that the
Durt either believes or does not believe that plaintiff is
ntitled to recover such damages. The instructions in reference
o damages are given as a guide in case you find from a pre-
onderance of the evidence the plaintiff is entitled to recover,
s it is the court's duty to state to you fully all of the law
pplicable to this case; but should your determination be that
here should be no recovery, then you will entirely disregard
he instructions given you upon the matter of damages.
-34-
INSTRUCTION NO.
The plaintiff alleges that by reason of her claimed injuries,
>r which she claims the defendants are liable, she has sustained
>neral damages in the sum of $200,000.00 for severe emotional
istress, mental anguish and pain and suffering, and has lost
n additional sum of $26,515.00, on account of the costs of
he therapy that she has undergone as a result of the malicious
rosecution, loss of wages, and cost of legal fees for defense
f the criminal proceeding.
These allegations are not evidence, but are merely the
extent of the plaintiff's claims, and must not be considered
3y you as evidence in the case.
-35-